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Judgment
M. Chockalingam, J.—This Writ Application challenges an Order of Detention made by the second respondent on 06.12.2009 whereby the petitioner was ordered to be detained under the provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982) branding him as a "Goonda".
The Court heard the learned Counsel appearing for the petitioner and looked into all the materials available, in particular, the order under challenge.
The detenu was involved in four adverse cases as follows:
Sl. Police Station Section of law No. Cr. No. & Date 1 Bazaar P.S. 294(b), 506(i) IPC Crime No. 129/2009 dated 9.3.2009 2 Bazaar P.S. 294(b), 323 IPC Crime No. 347/2009 dated 24.6.2009 3 Bazaar P.S. 294(b), 324, 323 and Crime No. 348/2009 506(ii) IPC dated 26.6.2009 4 Bazaar P.S. 294(b), 324, 506(ii) IPC Crime No. 511/2009 dated 4.9.2009
Apart from that, the detenu was involved in one ground case registered by Bazaar Police Station in Crime No. 608/2009 under Sections 294(b), 323, 302 IPC on 6.11.2009 and he was surrendered before the Judicial Magistrate, Rameswaram on 9.11.2009 and was remanded upto 16.11.2009 and police custody was ordered on 16.11.2009.
It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved in four adverse cases and in one ground case referred to above, on scrutiny of the materials, the detaining authority has made the order under challenge branding him as a "Goonda" after recording its subjective satisfaction that the activities of the detenu was prejudicial to the maintenance of public order and the same is the subject matter of challenge before this Court.
The only ground on which the learned Counsel for the petitioner, Mr.C.M.Arumugam, seeks the order of detention to be set aside is that insofar as the ground case is concerned, no bail application was filed by the detenu before any Court of criminal law but the detaining authority has stated that there was a real possibility of the detenu coming out on bail, which was made without any material, muchless, cogent material. Paragraph No. 5 of the detention order reads as follows:
...He did not file any bail petition till now. However, bail was granted to the accused in the adverse cases in Cr. Nos. 129/09, 348/09, 511/09 of Ramanathapuram Bazaar Police Station. Hence, there is a real possibility of his coming out on bail by filing a bail application before the same or higher Court. If he comes out on bail, he will indulge in future activities, which will be prejudicial to the maintenance of public order.
This observation would be an indicative of the fact of non-application of mind on the part of the detaining authority when no bail application was moved or pending before any Court of criminal law and it was only an expression of apprehension in the mind of the detaining authority.
The Court heard the learned Additional Public Prosecutor on the above contention.
It is quite clear that the detenu has not moved any bail application or pending before any Court of criminal law. However, the detaining authority has made an observation that there is a real possibility of the detenu coming out on bail by filing application before the same or Higher Court. Thus, it was an expression of apprehension passing in the mind of the detaining authority though at the time of order of detention no bail application was pending before any Court of criminal law, which would be an indicative of the fact of non-application of mind on the part of the detaining authority and hence, the order of detention is liable to be set aside.
Accordingly, the order of detention is set aside. The detenu is directed to be set at liberty forthwith unless his presence is required in connection with any other case. The Habeas Corpus Petition is allowed.